Citation Nr: 9837289
Decision Date: 12/22/98 Archive Date: 12/30/98
DOCKET NO. 97-10 351 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased rating for post-traumatic
stress disorder currently evaluated as 50 percent disabling.
2. Entitlement to service connection for peripheral
neuropathy as the result of Agent Orange exposure.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
John J. Crowley, Counsel
INTRODUCTION
The veteran served on active duty from June 1966 to June
1968.
This matter is currently before the Board of Veterans’
Appeals (Board) on appeal from rating decisions of the
Department of Veterans Affairs (VA) Regional Office (RO).
REMAND
In November 1995, the veteran underwent a VA examination to
assist him with his application for Social Security
Administration (SSA) benefits. The United States Court of
Veterans Appeals (Court) has held that, while a SSA decision
is not controlling for purposes of VA adjudications, the
decision is “pertinent” to a veteran’s claim. See
Martin v. Brown, 4 Vet.App. 136, 140 (1993). If the veteran
has received benefits from the SSA and those benefits are
based upon disability, the medical record upon which the
award was based would be pertinent to the veteran’s current
claim. The importance of obtaining these records is clear.
The Court has routinely vacated Board decisions due to a
failure to obtain SSA records. Consequently, without the SSA
records, the Board can not proceed to adjudicate the
veteran’s current claims.
The Board must also note that the VA has amended the rating
schedule with respect to mental disorders. 38 C.F.R.
§ 4.132 (1995), the VA Schedule of Ratings for Mental
Disorders, has been amended and redesignated as 38 C.F.R.
§ 4.130 (1998), effective November 7, 1996. The new criteria
have as their focus individual symptoms as manifested
throughout the record, rather than on medical opinions
characterizing overall social and industrial impairments as
mild, definite, considerable, severe or total. In light of
Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991), Massey v.
Brown, 7 Vet. App. 204 (1994), and the fact that the veteran
filed this claim prior to November 7, 1996, the Board finds
that a contemporary VA examination, in accordance with the
newly implemented diagnostic criteria, is in order. A VA
psychiatric examination is needed to delineate the symptoms
attributable to his service-connected PTSD and to obtain an
opinion as to the severity of this disorder (Global
Assessment of Functioning or GAF score). In the event that
the veteran continues to receive treatment for his
psychiatric disability, or for other types of mental illness,
then the records of his ongoing treatment should be obtained,
as this evidence would also have a bearing on the dispositive
question as to the present severity of his PTSD. Murincsak
v. Derwinski, 2 Vet. App. 363, 370-72 (1992); Lind v.
Principi, 3 Vet. App. 493 (1992).
The veteran requested a hearing before a hearing officer at
the RO in October 1997. In February 1998, the RO spoke with
the veteran and requested that he forego a personal hearing
at that time pending the results of a scheduled VA evaluation
and decision based on those findings. The veteran agreed and
the VA evaluation was performed in May 1998. The RO’s
determination in this case was not altered in light of the
May 1998 evaluation. Consequently, it appears that the
veteran may still desire a hearing, though this is unclear.
With regard to the claim of entitlement to service connection
for peripheral neuropathy as the result of Agent Orange
exposure, the veteran and his representative have repeatedly
submitted a January 1997 outpatient treatment record which
appears to indicated that he was scheduled for an Agent
Orange evaluation. It appears that this appointment was
scheduled for January 24, 1997. However, it is unclear if
this consultation was ever performed.
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, acute and subacute
peripheral neuropathy shall be service-connected if the
requirements of 38 C.F.R. § 3.307(a)(6) (1998) are met even
though there is no record of such disease during service,
provided further that the rebuttable presumption provisions
of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R.
§ 3.309(e) (1998). Acute and subacute peripheral neuropathy,
for the purposes of this section, mean transient peripheral
neuropath that appears within weeks or months of exposure to
a herbicide agent and resolves within two years. Id.
The regulations pertaining to Agent Orange exposure, expanded
to include all herbicides used in Vietnam, now provide for a
presumption of exposure to herbicide agents for veterans who
served on active duty in Vietnam during the Vietnam War. 38
C.F.R. § 3.307(a)(6). Service records indicate that the
veteran had active duty in Vietnam. Consequently, it is
presumed that he was exposed to Agent Orange or other
herbicide agents while in Vietnam. However, in this case,
based on the current evidence of record, it is unclear that
the veteran actually has peripheral neuropathy at this time.
The veteran is placed on notice regarding the importance of
submitting a well-grounded claim. The veteran must provide
evidence that he has peripheral neuropathy. See Caluza v.
Brown, 7 Vet. App. 498 (1995). The Board must also note
that, where the claim is not well grounded, the claimant
cannot invoke the VA’s duty to assist in the development of
the claim. Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997).
Nevertheless, in light of the procedural questions cited
above and the Court’s decision in Robinette v. Brown,
8 Vet. App. 69 (1995), the Board finds that further
development, as specified below, is warranted. Accordingly,
the case is REMANDED for the following development:
1. The RO should request the veteran to
identify the names, address, and
approximate dates of treatment for all
health care providers who may posses
additional records pertinent to his
claims. The veteran should be asked to
indicate whether he has undergone a VA
evaluation or consultation regarding his
claim of disability due to Agent Orange
exposure and whether he wishes a hearing
before a hearing officer at the RO.
After securing any necessary
authorization for the veteran, the RO
should attempt to obtain copies of those
treatment records identified by the
veteran which have not been previously
secured. A hearing before the RO, if
requested, should be provided. If the
veteran does not respond, a hearing
should not be scheduled.
2. The RO should obtain from the Social
Security Administration a copy of any
disability determination it has made for
the veteran and a copy of the record upon
which any such determination was based,
including all pertinent medical records.
The RO should invite the attention of the
Social Security Administration to
38 U.S.C.A. § 5106 (West 1991). If SSA
records are obtained, these should be
associated with the veteran’s claims
folder. If not, the steps taken to
obtain these records and the response of
the SSA should be made part of the record
in the claims folder.
3. Then, the veteran should be examined
by a VA psychiatrist to determine the
nature and extent of his service-
connected PTSD. The examiner in
conjunction with the examination must
review the claims folder or the pertinent
medical records contained therein. The
purpose of this evaluation is to
determine the degree of disability
associated with the veteran’s PTSD. If
there are different psychiatric disorders
other than PTSD, the examiner must
attempt to reconcile the diagnoses and
specify which symptoms are associated
with each of the disorder(s). If certain
symptomatology cannot be dissociated from
one disorder or another, that fact should
be specified. All necessary special
studies or tests are to be accomplished.
The examiner must assign a Global
Assessment of Functioning score for each
psychiatric disorder diagnosed which is
consistent with the American Psychiatric
Association’s DIAGNOSTIC AND STATISTICAL MANUAL
FOR MENTAL DISORDERS (4th ed. 1994). The
physician must define the score assigned.
The basis for any conclusions should be
explained, and any social and industrial
impairment should be specifically noted.
In this respect, the psychiatrist must
identify the frequency and severity of
all findings, as well as to enumerate all
symptomatology, particularly with respect
to:
a) The veteran’s affect, speech,
memory, judgment, abstract thinking, mood
and impulse control;
b) The veteran’s ability to perform the
activities of daily living, including his
ability to maintain personal hygiene;
c) The presence or absence of
hallucinations and/or delusions; the
presence or absence of grossly
inappropriate behavior; the presence or
absence of depression; the presence or
absence of panic attacks, and if panic
attacks are present, their frequency;
d) The veteran’s ability to adapt to
stressful circumstances in a work or work
like setting, and his ability to obtain
and maintain employment;
e) Commentary concerning the presence or
absence of suicidal and/or homicidal
ideation, obsessional rituals, and/or any
disorientation would be of great value to
the Board.
The veteran is advised that failure to
report for the scheduled examination may
have adverse consequences to his claim as
the information requested on this
examination addresses questions of
causation and symptomatology that are
vital in these claims. Moreover, under
38 C.F.R. § 3.655 (1998), where a
claimant fails without good cause to
appear for a scheduled examination in
conjunction with a claim for increase,
the claim will be denied. Connolly v.
Derwinski, 1 Vet. App. 566 (1991).
4. If the RO determines it is warranted
based on the evidence obtained and under
38 C.F.R. § 3.326 (1998), the RO should
arrange for a VA examination of the
veteran to determine if he actually
suffers from peripheral neuropathy and
whether this condition is associated with
Agent Orange exposure. All indicated
studies should be performed, and the
claims folder should be made available to
the examiner. All positive findings
should be described and any functional
impairment attributable to this condition
should be indicated. The examiner should
provide explicit responses to the
following questions:
(a) Does the veteran have peripheral
neuropathy?
(b) If so, is this condition associated
with his exposure to herbicides during
his active service in the Vietnam War?
5. After the development requested has
been completed, the RO should review the
examination reports to ensure that they
are in complete compliance with the
directives of this REMAND. It is
imperative that if the reports are
deficient in any manner, the RO must
implement corrective procedures at once.
6. Thereafter, the RO should determine
whether the claim of entitlement to
service connection for peripheral
neuropathy as the result of Agent Orange
exposure is well grounded under the
Court’s determinations in Caluza v.
Brown, 7 Vet. App. 498 (1995) and
Espiritu v. Derwinski, 2 Vet. App. 492,
494-5 (1994). The RO should review the
claim for increased rating, with a broad
and liberal interpretation of the
applicable regulations and legal
precedent, consistent with 38 C.F.R.
§§ 4.3, 4.7 (1998), and with
consideration of the rating criteria for
PTSD in effect subsequent to November 7,
1996.
The veteran is advised that any additional claims will not be
before the Board unless the determination of the RO is
unfavorable, and he files a timely notice of disagreement and
completes all procedural steps necessary to appeal a claim to
the Board pursuant to 38 U.S.C.A. § 7105 (West 1991).
While this case is in remand status, the veteran is free to
submit additional evidence and argument to the RO on the
questions at issue. See Quarles v. Derwinski, 3 Vet. App.
129, 141 (1992).
If the benefits sought are not granted, the veteran and his
representative should be furnished with a supplemental
statement of the case and provided an opportunity to respond.
The case should then be returned to the Board for further
appellate consideration. By this action, the Board intimates
no opinion, legal or factual, as to the ultimate disposition
warranted.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
Richard B. Frank
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).
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